Massachusetts News

Judges Are Afraid to Release Fathers

Zero tolerance means innocent and guilty will be punished

Massachusetts News--March, 2000

The judges of Massachusetts are afraid to release a man if he has been charged with domestic violence. They know that the Boston Globe will excoriate any judge if a woman is later injured or murdered. 

One judge, Bonnie H. MacLeod, says she heard a judge say at a conference, "When in doubt, throw him out."

She told Massachusetts Lawyers Weekly in 1997 that while not all judges adhere to the same line of thinking, some trial court judges do feel that if they are going to make an error, it is better to err on the side of issuing the order.

Walpole family lawyer Marilynne R. Bryant told the paper that restraining orders are "issued liberally and are easy to get."

Attorney Paul W. Patten of Fall River said they are "issued like candy." He continued, "It’s a rare case that they won’t be issued as long as somebody says the magic word – ‘I’ve been hit’ or ‘I’ve been threatened.’ Unless that person has three heads or something really incredible like that, a District Court judge is going to issue them."

SJC Gave Glimmer of Hope

The Lawyers Weekly story was written because of two new cases where the SJC had reversed the lower courts. The paper said:

"District Court and Probate Court judges have long been accused of ‘rubberstamping’ 209A requests, which – once issued – are entered into a registry at the Department of Probation and are very difficult to have expunged."

But the paper said that while the SJC opinion was "encouraging" to defense attorneys, they believed it would "not necessarily result in trial judges being more reluctant" to issue restraining orders.

Taunton attorney James H. Fagan, who is also a state Representative, said:

"While it’s a positive sign that the court has acknowledged a problem, to suggest that these two cases would [cause] the pendulum to swing back to a fairer or more neutral position would be overly optimistic….I had a judge once say, ‘Who cares if she lied on the affidavit? If she comes in and says she’s frightened today, that’s all I have to hear." 

Fagan added that even though the SJC opinion was welcome, the average person would not be able to afford to appeal a decision. In addition to that, it would probably be over a year before an appeal would be heard.

He also put some reality into the discussion by noting that the courts are greatly overloaded.

"All too often, given the busy and crowded docket the District Court judges face, a 209A request is a collateral emergency shoved on them in an already very busy, full day. As judges watch someone like me representing someone with four witnesses to controvert what was said in an affidavit, the judge looks at that and cannot help but think how much time this will take when he has a courtroom of people with criminal problems already scheduled for trial."